4.1 Unjust acquisition in breach of the Commonwealth
Constitution
The prohibitions in relation to conflicted remuneration,
volume-based shelf-space fees, and asset-based fees on borrowed
amounts, the corresponding grandfathering provisions, and the
anti-avoidance regime, each do not apply to extent that
they would constitute the acquisition of property in breach of the
Article 51(xxxi) Commonwealth Constitution.
Article 51(xxxi) provides that the Commonwealth can make laws
with respect to the acquisition of property on just terms
from any state or person for any purpose in respect of which the
Commonwealth has power to make laws.
The legal and academic question, thus, is whether the imposition
of any or all of the above-mentioned provisions, constitutes an
acquisition by the Commonwealth of property of those impacted
(namely, AFS licensees and their representatives) on
unjust terms, meaning they infringe the Commonwealth
Constitution.
